Afesis-corplan, in its submission to the Constitutional Review Committee, submits that the constitution does not need to be revised at this stage to (1) expropriate land without compensation, and (2) create an appropriate tenure regime. The state should however (1) test the constitutional provisions to determine under what circumstances it is ‘just and equitable’ to provide zero or less than market value compensation; and (2) undertake research and investigation into the advantages and disadvantages of various tenure options in different circumstances, to inform appropriate tenure regimes.
More broadly however, Afesis-corplan believes that the state is not living up to its constitutional obligations to (A – as per section 25.5) take sufficient “reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”, or (B – as per section 25.6) create a situation, to the extent provided by an Act of Parliament, where “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, … either to tenure which is legally secure or to comparable redress.”
By making this criticism we do not want to take away from the significant achievements made by government in addressing land reform in the country since 1994, including, for example, building RDP houses for people and finalising land restitution claims, but we do want to highlight that there is still much to be done. We contend that the solutions to these failures do not lie in changing the constitution but rather relate to developing a clear land reform policy that can be translated into specific land redistribution and tenure reform legislation, programmes and projects.
While this policy is being developed we suggest a number of more specific recommendations for the state to implement including, for example, and amongst others:
- Develop and adopt a new Land Expropriation Act that is in line with the constitution.
- Introduce a Managed Land Settlement Programme, a Housing Support Programme, and a Smallholder Programme.
- Require municipalities to include a land acquisition and development plan and programme within their Spatial Development Framework plans.
- Introduce a new comprehensive land administration system that accommodates both on-register and off-register land tenure situations such as in communal land areas, informal settlements, farm dwellers, communal property associations, etc.
- Establish a national coordinating structure to “drive a coherent and co-ordinated spatial framework for South Africa” as recommended by the High Level Panel.
Afesis-corplan is willing to participate in any land reform policy development process. Land for sustainable settlements is already a key focus area of Afesis-corplan and we are open to investigating opportunities for collaboration and partnership with government and others in pursuing land redistribution, land tenure reform and spatial restructuring.
For examples of submissions made by other organisations to the Constitutional Review Committee looking into expropriation without compensation, see :